The court’s refusal to apply the nondelegation doctrine jeopardizes our liberties. When the court allows excessive delegation, it enables Congress to hand off tough policy questions to unelected agencies. Indeed, one of the key takeaways from political scientist Morris Fiorina’s book, “Congress: Keystone of the Washington Establishment,” is that members of Congress deliberately cede power to agencies so they can avoid controversial votes that might cost them their offices. Rather than behave like real legislators, they choose instead to act like ombudsmen, helping constituents who later have problems with agencies. The court’s failure to apply the nondelegation doctrine incentivizes such legislative behavior.
The Gundy court’s neglect of this is all the more troublesome when one realizes that the public’s recourse from bad laws is, primarily, to vote out those who crafted them. But when bureaucrats make the law there is no electoral recourse. And without electoral recourse, our system of government becomes uncontrollable, a monster that can impose its will without constraint.